An amparo appeal to the Spanish Constitutional Court requires that ordinary judicial remedies be exhausted first. The Court's recent refusal to admit the Ombudsman's amparo appeal on the so-called 'grandchildren's law' (ley de nietos) illustrates this: the appeal arrived too early. We explain what this requirement means, how it applies in criminal proceedings and what to check before going to the Constitutional Court.
What has the Constitutional Court decided on the 'grandchildren's law'?
The Spanish Constitutional Court has refused to admit the amparo appeal lodged by the Ombudsman (Defensor del Pueblo) against the suspension of the right to vote of those who acquired Spanish nationality under the 'grandchildren's law'. It did not rule on the merits: according to press reports, it considered the appeal premature because the matter is still pending before the Third Chamber of the Supreme Court.
According to press reports of 21 October 2026, the decision was adopted by ten votes to two and will take the form of a reasoned order (auto), with two dissenting opinions announced. The text of the decision has not yet been published. This article does not assess the merits of the case, but the procedural rule that decided it and that affects anyone seeking constitutional protection: amparo requires the prior exhaustion of judicial remedies.
The amparo appeal is subsidiary: what this means
The Spanish Constitution entrusts the protection of fundamental rights, in the first place, to the ordinary courts. Article 53(2) of the Constitution provides for a preferential and summary procedure before them and, “where appropriate”, for an amparo appeal to the Constitutional Court.
Those words, “where appropriate”, sum up the logic of the system. The Constitutional Court is not a third or fourth instance, nor an alternative to the ordinary courts. It intervenes when the ordinary courts have had the opportunity to rule on the infringement and have not remedied it.
This subsidiarity serves two purposes. It preserves the role of ordinary judges as the first guarantors of rights. And it prevents the Constitutional Court from ruling on proceedings that are still open, whose outcome could make its intervention unnecessary.
Requirements of the amparo appeal: exhausting judicial remedies
The Organic Law of the Constitutional Court (LOTC) turns subsidiarity into admissibility requirements. If any of them is missing, the appeal is declared inadmissible without examining the merits (Article 50(1)(a) LOTC).
- Exhausting the judicial route against acts of the public administration (Article 43(1) LOTC). Before filing for amparo, the appropriate judicial proceedings must be brought and completed.
- Exhausting remedies against judicial decisions (Article 44(1)(a) LOTC). All means of challenge provided for by procedural law for the case must have been used.
- Invoking the infringed right (Article 44(1)(c) LOTC). The infringement must be raised in the proceedings as soon as it becomes known and there is an opportunity to do so.
- Meeting the time limit (Articles 43(2) and 44(2) LOTC). 20 days against administrative acts or 30 days against judicial decisions, from notification of the decision that ends the judicial route.
- Justifying special constitutional significance (Articles 49(1) and 50(1)(b) LOTC). The application must expressly justify it; the existence of an infringement is not enough.
Exhaustion and the time limit are linked. A premature appeal is declared inadmissible. But waiting for manifestly inappropriate remedies can artificially extend the judicial route and lead to an amparo filed out of time. The remedies that must be exhausted are the useful ones, not every conceivable one.
What is a premature amparo appeal?
An amparo appeal is premature when it is filed while the ordinary courts can still rule on the infringement. According to press reports, this was the majority's reasoning: the appeal was lodged while proceedings before the Supreme Court were still open.
The case is telling because there were two weighty arguments for swift intervention. The right to vote was at stake (Article 23 of the Constitution) and a general election was approaching. Even so, the majority of the Court considered that neither argument dispensed with the requirement.
Urgency has its own channels within ordinary proceedings: interim measures and the remedies available in each jurisdiction. Amparo does not replace them. If the ordinary judge has not had the last word, the Constitutional Court will not have it yet.
Amparo appeals in criminal proceedings: common mistakes
The 'grandchildren's law' case is an administrative-law matter, but the rule applies with particular force in criminal proceedings. In criminal defence, fundamental rights are frequently invoked: effective judicial protection, the presumption of innocence, the right of defence, personal liberty or the secrecy of communications.
There are three common mistakes:
- Filing amparo against decisions made during the investigation phase. While proceedings are still open, the infringement can usually be remedied later, at trial or on appeal against the judgment. That is why the Constitutional Court tends to consider these appeals premature, with exceptions such as decisions on personal liberty.
- Failing to raise the infringement in time. If the right is not invoked before the ordinary judge as soon as there is an opportunity, a later amparo appeal may be declared inadmissible even if the infringement exists.
- Overlooking the motion to annul proceedings. Where the infringement cannot be corrected through any other remedy, Article 241 of the Organic Law of the Judiciary (LOPJ) provides for a motion to annul proceedings (incidente de nulidad de actuaciones). It must be considered before amparo, because in those cases it forms part of the judicial route that must be exhausted.
Checklist before filing an amparo appeal
Five questions to answer before preparing an amparo application:
- Have all the useful remedies provided for by procedural law for this case been used?
- Are the proceedings still open, so that the infringement could still be remedied by the ordinary courts?
- Was the infringement of the fundamental right raised as soon as there was an opportunity?
- If no appeal was available, has a motion to annul proceedings (Article 241 LOPJ) been filed?
- Is the time limit clear, and from which notification does it run, and can special constitutional significance be justified?
Frequently asked questions about the amparo appeal
Can I go directly to the Spanish Constitutional Court?
No. An amparo appeal requires the prior exhaustion of ordinary judicial remedies (Articles 43(1) and 44(1)(a) LOTC). If the proceedings are still open, the appeal will be declared inadmissible as premature.
What is the time limit for filing an amparo appeal?
The time limit is 30 days against judicial decisions (Article 44(2) LOTC) and 20 days against acts of the public administration (Article 43(2) LOTC). It runs from notification of the decision that ends the judicial route.
What is special constitutional significance?
It is an admissibility requirement: the application must justify why the case is relevant to the interpretation or effectiveness of the Constitution, beyond the individual infringement (Articles 49(1) and 50(1)(b) LOTC).
Conclusion
The refusal to admit the amparo appeal on the 'grandchildren's law' does not decide whether the suspension of the vote is constitutional. It only decides that it is not yet for the Constitutional Court to rule. And it is a reminder of a rule that applies to any proceedings: in amparo, form is examined before substance.
For anyone defending fundamental rights in proceedings, the practical consequence is clear. The strategy towards the Constitutional Court begins with the first submission to the ordinary judge, not at the end of the proceedings.
If your case raises a possible infringement of fundamental rights, our team of criminal lawyers can analyse it from the outset. We work as criminal lawyers in Madrid and throughout Spain. Contact us or read more analysis in our Insights section.
